R v Wang

[2009] NZCA 118

IN THE COURT OF APPEAL OF NEW ZEALAND

CA505/2008
[2009] NZCA118

THE QUEEN

v

YI WANG

Hearing:1 April 2009

Court:Robertson, Gendall and Keane JJ

Counsel:P J Kaye for Appellant

J M Jelas for Crown

Judgment:6 April 2009 at 11.30 am

JUDGMENT OF THE COURT

APPEAL AGAINST LENGTH OF MINIMUM PERIOD OF IMPRISONMENT ALLOWED, AND THE MINIMUM PERIOD OF IMPRISONMENT IS REDUCED FROM FIVE YEARS TO FOUR YEARS.

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REASONS OF THE COURT

(Given by Gendall J)

Introduction

[1]       The appellant pleaded guilty to 14 charges under the Misuse of Drugs Act 1975 and the Arms Act 1983 involving supplying methamphetamine, possession of methamphetamine for supply, possession of semi-automatic rifles and ammunition, and offering to supply methamphetamine.  He was sentenced to an effective term of eight years three months’ imprisonment on the lead charge of supplying methamphetamine and ordered to serve a minimum non parole period of five years’ imprisonment .  In respect of the other charges he was sentenced to concurrent terms of imprisonment varying between six months and three years.  He appeals against the imposition of a minimum non parole period of imprisonment and in the alternative, the length of it.

Background evidence

[2]       On 2 December 2005 Police Officers located on the appellant six ecstasy tablets, $4,000 in cash in $100 notes and a loaded .22 calibre firearm disguised as a ballpoint pen.  A search of the appellant’s hotel room revealed a small quantity of methamphetamine, cannabis and methamphetamine pipes, together with empty snaplock deal bags, plastic straws and butane gas lighters, together with six rounds of .22 calibre ammunition. 

[3]       About three months later, the Police executed a search warrant at the appellant’s home address in Pakuranga.  They found 78.5 grams of methamphetamine in a cardboard box, having an estimated street value of approximately $80,000.  Empty snaplock deal bags and electronic scales were also located.  Two semi-automatic rifles and one cut down rifle, together with approximately 200 rounds of ammunition, were also located at the property.  This offending occurred whilst the appellant was on bail in respect of the earlier drug related charges.

[4]       Notwithstanding those events the appellant continued to be involved in drug dealing activities involving methamphetamine in substantial quantities.  Intercepted communications between the months of July and August 2006 revealed that whilst on bail the appellant offered to supply methamphetamine to others. 

[5]       A disputed facts hearing was held, and the Judge was required to make factual findings as to the meaning of the intercepted conversations.  These were clearly in a code, well known to be adopted by drug dealers and purchasers.  The Judge was satisfied beyond reasonable doubt that the discussions related to the supply of one-ounce quantities of methamphetamine, which the appellant was offering to sell to others for around $12,000.

The Judge’s sentencing approach

[6]       Lang J fixed a starting point of eight years’ imprisonment in relation to the drug offences only to reflect the totality of the methamphetamine crimes falling into the top of the second category described by this Court in R v Fatu [2006] 2 NZLR 72. That was then increased to 11 years by reason of the serious firearms and ammunition offences and the fact that on two occasions, whilst on bail on the initial drugs and firearm charges, the appellant continued to offend in a very significant way over a two month period, clearly dealing and offering to sell methamphetamine in ounce quantities to others.

[7]       The Judge mentioned two mitigating factors, being the guilty plea (although he noted that it did not come at an early stage) and that the appellant had had no previous convictions whilst in New Zealand.  The Judge said he was entitled to receive some credit for that.  Accordingly, the overall discount to reflect the guilty pleas and personal mitigating features was fixed at 25 per cent.  The lead sentence of eight years three months’ imprisonment resulted.

[8]       The Judge then turned to s 86(1) of the Sentencing Act 2002, and the imposition of a minimum term of imprisonment.  He said that eligibility for parole after one-third would be manifestly inadequate to accomplish the purposes referred to in s 86, the offending being so persistent and so serious, and that the principles and objects of s 86(2) could not be met other than by imposing a minimum term of five years’ imprisonment. 

The appellant’s contentions

[9]       Mr Kaye, on behalf of the appellant, accepted that whilst the starting point of 11 years and the end sentence of eight years nine months was at the top end or high, it was within the range available to the sentencing Judge. 

[10]     The appeal was pursued on the basis that a minimum non parole period was not required and, even if it was, its length was manifestly excessive.  Counsel argued that, whilst the s 86(2) considerations of holding an offender accountable, denouncing his conduct and deterring the offender and others from committing similar offences might have been relevant, there was no element of public safety involved in the sense of the community being protected from the offender, as he will be deported immediately he is released from prison.  Counsel submitted that a minimum non parole period was not necessary for this offending and this appellant, and the question of parole could and should be properly left to the discretion of the Parole Board to consider when to release him on parole after the statutory one-third or two years nine months.  He submitted that, in any event, in line with the comments of this court in R v Anslow CA182/05 18 November 2005 that minimum periods of imprisonment have seldom been ordered when a finite term imposed was less than nine years imprisonment, but were commonly imposed when the lead sentence was nine years or greater.  He submitted that, if there were to be a minimum term of imprisonment fixed it ought not properly to be beyond 40-50 per cent.

Discussion

[11]     The issue is whether serving one-third of the finite sentence would be insufficient for all or any of the four purposes in s 86(2).  It is obvious that protection of the community will not arise, given the inevitable deportation.  However, we are satisfied that the gravity and nature of the offending was such that the one-third period would be insufficient to hold the appellant accountable to the community, to denounce his conduct and to deter others.  It is no longer the case that the circumstances of the offending must be outside the ordinary range of offending of a particular kind.  This was large scale repetitive dealing in methamphetamine justifying a starting point of 11 years’ imprisonment, and the fact that the finite term imposed was eight years three months does not mean that a minimum non-parole period cannot be imposed. 

[12]     We repeat what this Court said in R v Richardson CA85/06 16 August 2006 at [26], and endorsed in R v Harkins [2008] NZCA 540 at [26]:

Anslow should not be understood as holding that a minimum period of imprisonment is inappropriate unless the term is nine years or more.  The observations in Anslow merely reflect the reality that offending which is serious enough to warrant the imposition of a minimum period of imprisonment will generally attract a prison sentence of nine years or more.

[13]     We are satisfied that Lang J was entitled to impose a minimum period of imprisonment.  The real issue on this appeal is whether the length imposed was manifestly excessive.

Length of the minimum term

[14]     In deciding the length the sentencing Judge is required to take into account the purposes and principles of sentencing, including aggravating and mitigating features, which is a similar exercise to settling the finite term.  A review of the circumstances of the offence and the offender is required.  If the sentencing Judge considers the minimum period needs to be two-thirds of the finite sentence then that should be imposed and there is no presumption against the imposition of the two-thirds maximum.  In this case the minimum period fixed by Lang J was approximately 60 per cent of the full sentence.  We think it was too high in all the circumstances. 

[15]     Notwithstanding the serious commerciality of the offending, and the appellant being on bail at the time, there were significant considerations in this case which included his guilty plea and absence of criminal convictions in New Zealand which required discrete recognition when assessing the length of the minimum period of imprisonment.  Where deportation is to follow and elements of community protection do not exist, the minimum term might not in some circumstances be as lengthy as otherwise ought to be the case.  Our conclusion is that a term which equates with 60% of the finite sentence was, when viewed overall, too high and that a minimum period of imprisonment of four years, representing a little under 50 per cent of the finite sentence, is the appropriate maximum. 

[16]     Accordingly the appeal is allowed to the extent that the length of the minimum period of imprisonment is reduced from five years to four years’ imprisonment.

Solicitors:
Crown Law Office, Wellington